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Friday, August 11, 2017

Say "goodbye," Sheriff

“The reason I think a lot of this is being talked about is that many, many people around the country are saying, ‘Trump should pardon,'” Arpaio added. “I have not called him on this issue. I’m sure I could. … I’m with him, pardon no pardon, and not asking him. Although, as I said, many other people are asking him.”

And the short answer is "No." The longer, more deliberate answer is: "Almost certainly not," if for no other reason than a tweet would not be a Presidential pardon, anymore than a verbal announcement of an "emergency" means the opioid crisis will now be treated as such by the Federal government. For one thing, "emergency" it may be, by the power of the Presidential voice box, but what now? How does the government proceed? Even in the reign of Henry VIIII, such questions had to be answered. So even if Trump uttered the words "Pardon" and "Arpaio" in the same sentence, saying it would not make it so, and it would probably place him at odds with his own Justice Department and its Office of the Pardon Attorney.

But first, what's going on?

Arpaio declined to confirm to the paper that he had spoken to Trump since the presidential inauguration.

In an interview Monday with the popular conspiracy website InfoWars, though, Arpaio was more direct: “Where is President Trump on this case?” he asked, adding: “I’m being convicted for honestly trying to enforce the immigration laws that Trump swore during the campaign he would uphold if elected president.”

Things seemed to go downhill for Arpaio after his endorsement of Trump.

In October, he was charged with criminal contempt of court for ignoring a judge’s order, years earlier, to cease racially tinged police patrols for undocumented immigrants.

Arpaio has not been "convicted for honestly trying to enforce the immigrations laws" (and when did Trump swear to anything during his campaign?), but for ignoring a court order. And here the question of contempt of court arises. There are two kinds of contempt: civil and criminal.

It is generally understood that the distinction between civil and criminal contempt is that the former consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein, and is therefore not an offense against the dignity of the court, but against the party in whose behalf the violated order is made; while the latter is a direct offense against the dignity of the court.

The essential nature of civil contempts being coercive, to secure the civil rights of party litigants, it is generally agreed that they are not within the pardoning power.

What, then, about criminal contempt? Well, if the executive cannot interfere with the court's power to secure the rights of parties before it, on what grounds can the executive interfere with the court's power to defend its own authority as a court?

It is a function of the judiciary to declare and enforce private and public rights. The power to punish for contempt is an inherent power to enforce its orders and decrees and, in general, to enable it to perform the functions for which it was created. The founders of our government intended that the three branches of our government-legislative, executive, and judicial-should be distinct and independent; that in the exercise of their respective Constitutional functions each should be free from interference on the part of every other. The judiciary, more than any other department of the government, should be immune from outside influence and interference. If the governor is permitted to pardon those guilty of contdmpt of court, the judicial branch of the government is, to that extent, made dependent on the executive branch. It is obvious that the judicial branch of the government cannot effectively perform its functions in the administration of justice unless its authority and dignity are accorded the highest respect, and its dignity and authority are imperiled when the executive branch possesses a veto over the exercise of its power to punish for contempt and disobedience.

Chief Justice Marshall once defined a pardon as "an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for the crime he has committed." As the governor is charged with the duty of seeing that the laws are faithfully executed it is in strict accordance with the theory of the power of pardon that he should have power to pardon offenders against the laws which it is his duty to execute. But it does not by any means follow that he should have the power of pardoning offenses with respect to which he has no duty or concern; and he has no duty or concern with respect to the offense of contempt of court.

You can substitute "President" for "governor" there with no affect on the analysis. It's a 1929 law review article, but I don't see why the courts wouldn't uphold that reasoning should the President try to get his Pardon Attorney to issue a pardon for ex-Sheriff Arpaio.

I know the ex-sheriff would like to imagine a deus ex machina is going to save him from himself, but there's really no way for that to happen. If you hear any manner of speculation about the possibility, just keep in mind the courts would never allow the executive to trample on their authority so cavalierly; nor would we want them to.

1 Comments:

I wonder what Arpaio could be forced to testify about in a future court case if he got a pardon. It might be interesting. If I don't get to see him in orange being perp-walked in leg irons, it's something to think about.